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New Laws Clamp Down on Refugees BY Caroline Zuercher

In a referendum on september 24,
2006, the citizens of Switzerland
voted in favour of a revised Asylum
Act and the new Foreign Nationals
Act (see box). The campaign leading up to
the vote was tense. Those opposing the
measures claimed they would violate basic
human rights. Wrong, retorted the architects
of change, citing abuses of the refugee
system. After their defeat, those defending
the rights of foreign nationals announced
their plan to closely monitor the application
of the new regulations – whose
implementation among Switzerland’s 26
cantons tends to vary widely.
The first of the laws tightened restrictions
on asylum seekers in Switzerland through a
revision of the Asylum Act. The second came
in the form of a new Foreign Nationals Act,
replacing the one passed in 1931.
Switzerland is not the only country to
face sharp criticism for its treatment of
refugee claimants. In 2005, the World
Council of Churches denounced what it
called a global trend “toward criminalizing
refugees, asylum seekers and migrants.”
The Church body singled out Australia,
the Bahamas, Canada, Italy, Malaysia,
South Africa, the United States and
unspecified European countries for their
harsh and questionable practices.
In Switzerland, as in many federations,
asylum recognition is a federal matter,
which is carried out by the Federal Office
for Migration.
Three years before the enactment of
the controversial laws, the Swiss Parliament
had already decided to cut expenditures
by refusing welfare benefits to asylum
seekers against whom non-admission
rulings had been rendered. The rejected
asylum seekers have access only to minimal
aid: a subsistence-level emergency
lump sum benefit designed to encourage
them to leave Switzerland as quickly as possible. This system is managed by the
cantons, which are funded by the federal
government. But, instead of distributing
the funds as it does welfare benefits, the
federal government doles out one emergency
assistance payment per person
without considering the recipient’s
length of stay in the canton. Its critics
claim that the federal government is
“offloading its financial burdens onto the
cantons and communes.”
Bern vs the Cantons
As of January 1, 2008, the new Asylum Act
will deny social assistance to claimants
whose applications have been refused
through normal and accelerated procedures
alike, and who must leave
Switzerland.
In a report dated August 2006, the
Swiss Refugee Council claimed that the
fate of people denied welfare differed
from region to region. While certain
regions offered repatriation advice, occupational
programs, or, for the most
vulnerable, separate reception infrastructures;
other regions denied emergency
assistance to those entitled to it – even
though the Federal Supreme Court,
Switzerland’s highest tribunal, has ruled
the practise unconstitutional. Since the
assistance in question amounts to a onetime
payment, the regions naturally want
rejected asylum seekers to leave, and
offer them unattractive schemes – a situation
that sees urban areas shell out more
than the regions to pay for the departures
of the unwanted refugees.
There are also disparities in the socalled
“coercive measures,” the cantonal
authority to imprison rejected asylum
seekers who refuse to leave. Since Jan.1,
2007, the new Foreign Nationals Act
allows such deportees to be incarcerated
for longer periods. A 2005 parliamentary
report cited different practices across the
country. In Zurich, for instance, 95 per
cent of deportees are kept in custody
before being taken to the airport, while in
Geneva the rate is only 7 per cent.
Parliament has recently debated the
disparities such as the detention of
minors, a measure that was put into practice
in 17 of the 26 cantons between 2002
and 2004, and avoided or banned by the
others. Zurich accounted for nearly half
of the approximately 350 cases of incarcerated
minors. Deputies, worried that
such practices ran counter to the
Convention on the Rights of the Child,
and would lead to “manifest inequalities.”
How will the new incarceration
options be applied? “I don’t think that we
will witness many arrests,” said Roger
Schneeberger, the secretary general of the
Conference of Cantonal Justice and Police
Directors. “A few examples will be made.”
High arrest levels are unlikely because
prison stays are expensive (on average,
300 francs per day, or about $240 U.S.)
and the establishments themselves are
overflowing. “To apply the law in the way
the legislators intended it, we would
require money for new prisons or the
expansion of existing ones,” said
Giacomo Gemnetti, head of the Tessin
judicial authority. Due to lack of space,
immigrants in his canton who are
ordered to be detained are sent to Basel,
at the other end of the country – at the
expense of Tessin’s authorities.
Luck of the Draw
There’s nothing new about this. Certain
regions clearly treat asylum seekers better
than others. In this lottery, some are
more fortunate than others. But this may
change. Requests for asylum in
Switzerland are decreasing. Processing
time for these demands is thus accelerated
and failed asylum seekers are
spending less time in Switzerland, lightening
the burden on the country’s
taxpayers. After Two New Laws Came
into Effect
Since the Asylum Act and the Foreign
Nationals Act were approved in a referendum
in September 2006, advocates
of refugee rights in Switzerland have
won a few small victories. A watchdog
group was created in Geneva in April to
document all the errors made by the
federal refugee authorities. In its first
report, it listed seven cases of alleged
miscarriage of justice. And in the
Canton of Vaud, a Bosnian refugee family
was granted working papers after
having been under deportation order
since January 2005. A petition with
1,500 signatures helped persuade Bern
to grant asylum to the family.
The row over refugee rights in Switzerland
reached all the way to the federal
cabinet. In May, Micheline Calmy-Rey,
the Federal Minister of Foreign Affairs,
challenged Christoph Blocher, the
Minister of the Federal Department of
Justice and Police, to grant asylum to
1,000 refugees from Iraq. Meanwhile,
the Swiss government has been levying
a special tax of 10 per cent on wages of
refugee applicants, to recover the costs
of the refugee claims process. Some of the Changes
The Asylum Act changes came from a review that began in 1999.
• Documents: With certain exceptions, the law requires asylum seekers to produce
a passport or identity card within 48 hours. Previously, the authorities would
accept other forms of identification, such as a driver’s licence.
• Provisional admission: This status is granted to persons who cannot be repatriated
such as those arriving from war-torn countries. The new law promotes the
integration of these migrants, who generally end up settling in Switzerland,
through improvements to labour market access and family reunification.
• Cases of hardship: Cantons can grant residence permits to persons who have
been in Switzerland for at least five years and have integrated well. What’s new is
that the article no longer applies only to those whose asylum hearings are pending,
but also to those whose cases have been closed.
The New Foreign Nationals Act applies only to non-EU nationals and does not apply
to those who fail to produce identity papers.
• Detention: Coercive measures have been reinforced. Persons who have been
ordered to leave Switzerland and refuse to do so can be imprisoned. In future,
foreign nationals could conceivably spend up to two years behind bars (one year
for minors). Those who agree to leave the country are released.
• Work permits: Available only to qualified workers. Priority is given to Swiss and
European nationals. Holders of long-term permits can change employment or
canton of residence without permission.
• Settlement permits: Until now, settlement permits were issued almost automatically
after 10 years. This has been reduced to five years; however, candidates
must prove that they have made efforts to integrate.
• Family reunification: Children must join their parents in Switzerland within five
years; those aged 12 and over must do so within one year.
• Marriages of convenience: Civil authorities can refuse to wed couples suspected
of such an arrangement.
• Integration: Bound by legal provisions for the first time. The privilege of being
granted a residence permit may be linked, for example, to taking language
classes.